Opinion
C086832
10-28-2019
THE PEOPLE, Plaintiff and Respondent, v. MITCHELL JAY LAURANCE, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17FE018634)
Defendant Mitchell Jay Laurance appeals his convictions for the sale of heroin, possession of heroin for sale, and possession of methamphetamine. He contends that the trial court prejudicially erred in (1) admitting evidence of two prior bad acts under Evidence Code section 1101; and (2) instructing the jury on consciousness of guilt. He also asks us to review the sealed record to determine the propriety of the trial court's ruling on the identity of the confidential informant. We will affirm.
FACTUAL BACKGROUND
Defendant was the target of an undercover investigation prompted by information from a confidential informant. As part of the investigation, Detective David Neher contacted defendant about purchasing heroin and defendant agreed to sell him one-eighth of an ounce for $180. As planned, they met in a drugstore parking lot, and defendant sold Neher the heroin. Neher asked defendant if he could purchase more heroin from defendant in the future. Defendant replied he could provide heroin on demand, as he had recently purchased four ounces of heroin for $4,000. He said he could sell Neher heroin for $1,200 an ounce. Neher attempted to set up additional purchases through text and phone messages. Through text messaging, Neher asked to purchase two ounces of heroin for $2,300. Defendant answered that the lowest price he could accept was $2,400. Neher sent a text message agreeing to the price. Defendant replied that he had the heroin in his possession. After that text message, defendant stopped responding to Neher's calls and text messages and the sale did not occur.
Approximately two weeks after the initial sales transaction, officers conducted a lawful search of defendant's home. Defendant had been living with his father and his father's fiancée, Heather Jeffery, for approximately two months before the search. Defendant installed surveillance cameras and a monitor after he moved into the home. The cameras were located at the front door, both sides of the house, and in the backyard. In defendant's bedroom, officers found a video surveillance monitor. In a safe to which only defendant had access, officers found approximately 61 grams of heroin, divided into four packages, two of approximately 26 grams, one of 6.2 and one of 2.7 grams. They also found approximately six grams of methamphetamine, plastic bags, a scale, aluminum foil, smoking devices, and approximately $1,100 in cash, primarily in $20 denominations. The packaging, digital scale, and cash are consistent with sales. The street value of 60 grams of heroin is almost $3,000. The street value of 6.3 grams of methamphetamine is about $150. The parties stipulated that defendant knew the substances were heroin and methamphetamine.
Jeffery testified that defendant was unemployed while living with them. He mostly stayed at home during the day, but would leave the house a "[m]inimum" of 10 to 15 times per day and be gone anywhere from five minutes to an hour. Sometimes she saw him parked at a nearby fast food restaurant. One day, from her kitchen window, Jeffery saw a tattoo artist friend of defendant give defendant money. Defendant opened the trunk of his car, removed something from beneath the spare tire cover, and gave it to the man. Defendant told Jeffery the money was "change for giving him a tattoo." After questioning him, Jeffery kicked defendant out of the house.
Detective William Dunning testified as an expert on possession of heroin and methamphetamine for sale. Dunning testified that the typical doses of heroin and methamphetamine depend on the user, but for heroin it can range from two-tenths of a gram up to a half of a gram and methamphetamine can range from one-tenth of a gram up to a half of a gram. Presented with a hypothetical question based on facts consistent with this case, i.e., a person (1) selling about one-eighth of an ounce of heroin to an undercover officer; (2) having surveillance cameras at his house and a monitor in his bedroom; (3) having a safe that contained heroin, methamphetamine, cash, packaging materials, and a digital scale; and (4) lacking a job, but leaving the house 10 to 15 times per day for varying lengths of time, Dunning opined that the heroin and methamphetamine found inside the safe was possessed for sale.
Prior Bad Acts
The prosecution also presented evidence of other crimes on the issue of intent. In 2016, investigating a report of drug sales, Folsom police officers searched a hotel room occupied by defendant and two other men. Inside defendant's backpack, officers discovered a locked box. In the box they found unused packaging material, consistent with drug sales, and two digital gram scales with residue that tested presumptively positive for heroin. On defendant, they found a cell phone and $301, primarily in $20 denominations. Defendant denied the money was his. Under the mattress in the room, there was a container with 13 grams of heroin. The street value for 13 grams of heroin is about $1,300, and would provide about 130 doses.
This case, and another prior uncharged act which was not admitted, were resolved by a plea to one count of possession for sale.
In 2017, a Citrus Heights police officer searched defendant in a drugstore parking lot. Defendant was found in possession of approximately 1.5 grams of heroin and a cell phone containing text messages consistent with drug sales. The officer arrested defendant for simple possession.
PROCEDURAL HISTORY
An information charged defendant with sale of a controlled substance, heroin (Health & Saf. Code, § 11352, subd. (a)-count one), possession of heroin for sale (Health & Saf. Code, § 11351-count two), and possession of methamphetamine for sale (Health & Saf. Code, § 11378-count three). As to count two, the information alleged that defendant possessed 14.25 grams or more of a substance containing heroin for sale. (Pen. Code, § 1203.07, subd. (a)(1); Health & Saf. Code, § 11352.5, subd. (1).) A jury found defendant guilty of counts one and two, and found true the enhancement allegation attached to count two. It found defendant not guilty of count three, but guilty of the lesser included offense of misdemeanor possession of methamphetamine. (Health & Saf. Code, § 11377.)
The trial court sentenced defendant to an aggregate term of six years, to be served as a "split sentence" (Pen. Code, § 1170, subd. (h)) with three years served in county jail and three years served as mandatory postrelease community supervision subject to terms and conditions. The trial court imposed a number of fines and fees attendant to the sentences.
Defendant was on probation when he committed this offense. The trial court revoked probation and sentenced defendant to a consecutive one-year term in that case. That one-year term is included in the aggregate six-year term.
DISCUSSION
I
Defendant contends the trial court erred prejudicially in admitting the prior bad acts evidence under Evidence Code section 1101, subdivision (b). He argues neither incident was sufficiently similar to the charged offense to demonstrate intent to sell.
Undesignated statutory references are to the Evidence Code.
In assessing the trial court's evidentiary ruling, we consider the facts known to the court at the time of the ruling. Thus, in this case, we look to the prosecution's offers of proof in determining error. (People v. Hendrix (2013) 214 Cal.App.4th 216, 243.)
The People moved to admit evidence of prior uncharged acts under section 1101, subdivision (b) on the issue of intent. The People averred in the present case, defendant sold one-eighth of an ounce of heroin to an undercover officer. In a subsequent search of defendant's home, officers discovered "a large amount of heroin, methamphetamine, and indicia of drug sales including baggies, a scale, and cash." The prosecution sought to admit a 2016 incident in which law enforcement received a hotel manager's report of drug sales at the property. The manager reported three men were staying in the room and he believed they were involved in drug sales. The officers searched the room and found "13 grams of heroin, baggies, multiple scales, and cash." The prosecution also sought to admit a 2017 incident in which officers saw defendant in the parking lot of a drugstore, recognized him, were aware that he had an outstanding warrant, and placed him under arrest. While searching defendant, officers placed defendant's cell phone on the hood of his car. It was unlocked and they saw "a text exchange between the Defendant and an unknown person that indicated drug sales." They also found heroin in defendant's possession.
Initially, the People sought to introduce an additional incident. All three were offered on the issue of intent and knowledge of the character of the substance. Defendant stipulated to knowledge. Accordingly, the People sought to introduce only two prior uncharged acts solely on the issue of intent.
Defendant objected that the proffered evidence was more prejudicial than probative under section 352, and that as to the prior sales case, there was not a sufficient level of similarity in the conduct.
The trial court found the uncharged acts were sufficiently similar to the charged offense and the prejudicial impact did not substantially outweigh any probative value. The trial court noted the 2017 case was qualitatively different than the current charges but did involve references to drug sales similar to those alleged in this case. Accordingly, the trial court ruled the prior uncharged acts admissible.
Analysis
We review the trial court's rulings on the admissibility of evidence under sections 1101 and 352 for abuse of discretion. (People v. Fuiava (2012) 53 Cal.4th 622, 667-668.)
Under section 1101, subdivision (b), evidence of a prior bad act is admissible to prove intent, that is, "if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense." (People v. Ewoldt (1994) 7 Cal.4th 380, 394, fn. 2 (Ewoldt).) The least degree of similarity is required to establish relevance on the issue of intent. (Id. at p. 402.) The uncharged crimes need only be "sufficiently similar [to the charged offenses] to support the inference that the defendant ' "probably harbor[ed] the same intent in each instance." [Citations.]' " (Ibid.) In the context of prosecutions for drug offenses, evidence of prior drug convictions is generally admissible under section 1101, subdivision (b) "to establish that the drugs were possessed for sale rather than for personal use and to prove knowledge of the narcotic nature of the drugs." (People v. Williams (2009) 170 Cal.App.4th 587, 607.)
In addition to being sufficiently similar, to be admissible the probative value of the uncharged acts must not be outweighed by their prejudicial effect; the court considers, " ' "the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury." ' " (People v. Thomas (2011) 52 Cal.4th 336, 354; see § 352.)
The current charges involved a report of defendant selling drugs. He communicated with an undercover officer about drug sales via voice and text message on his cell phone. He met the undercover officer in a drugstore parking lot and sold him heroin. A search of his home revealed a large amount of heroin, methamphetamine, baggies, a scale, and cash. The 2017 act, like the current offense, involved defendant in a drugstore parking lot, in possession of heroin and a cell phone with text messages indicating drug sales. The 2016 act, like the current offense, concerned a report of defendant being involved in suspected drug sales and a search of the room where he was staying leading to discovery of a significant amount of heroin, packaging materials, scales, and cash. The prior uncharged acts were sufficiently similar to the charged offenses to be admissible on the issue of intent.
Further, the evidence's probative value was not substantially outweighed by its prejudicial effect. The test under section 352 is whether the evidence poses the risk of undue prejudice, i.e., it " 'uniquely tends to evoke an emotional bias against the defendant as an individual and . . . has very little effect on the issues.' " (People v. Karis (1988) 46 Cal.3d 612, 638.) Nothing about the prior acts in this case posed the risk of such undue prejudice. The conduct underlying the uncharged acts was not more inflammatory than the charged acts, it was in fact very similar in nature. The evidence was proffered through the testimony of one law enforcement officer per prior act, so it did not consume undue time. Nor was there anything in the evidence likely to confuse the jury. The trial court did not abuse its discretion in admitting the evidence of defendant's prior uncharged acts.
II
Defendant contends the trial court erred in instructing the jury on consciousness of guilt as to his statement to Heather Jeffery that the money exchange she witnessed was related to overpayment for a tattoo. He argues there is no evidence the falsehood related to the charged offense and there was no evidence the statement was false. He claims the error was prejudicial as it allowed the jury to consider an inference without any evidence to support it.
Background
Jeffery testified about an incident she witnessed that she thought was suspicious. One day, from her kitchen window, she saw a man give defendant money. In response, defendant opened the trunk of his car, removed something from beneath the spare tire cover, and gave it to the man. Jeffrey recognized the man as someone who gave defendant tattoos. When Jeffery asked defendant about the exchange, defendant claimed the money was change for overpayment on a tattoo.
During the conference on jury instructions, the trial court indicated that it thought it was appropriate to give CALCRIM No. 362, consciousness of guilt based on making false statements, as the inference from Jeffery's testimony was defendant was not being truthful with Jeffery about that exchange. Defense counsel objected on the basis there was nothing to support the conclusion this was in fact a drug transaction, and therefore, a false statement. The prosecution indicated it favored the instruction. The trial court ruled it would give the instruction because it could be argued the statement was less than honest and intended to deceive Jeffery as to what defendant was doing. The trial court instructed the jury with CALCRIM No. 362, as follows:
"If the defendant made a false or misleading statement during or before the trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show that he was aware of his guilt of the crime and you may consider it in determining his guilt.
"If you conclude that the defendant made the statement, it's up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself." (CALCRIM No. 362, as given.)
Analysis
We review issues of instructional error de novo. (People v. Alvarez (1996) 14 Cal.4th 155, 218.)
For a statement to reflect " 'consciousness of guilt,' " "the defendant's lie [must be] related directly to the crime charged—for example, a false alibi, a questionable story about how defendant came to innocently possess stolen goods, or a denial of any relationship to the victim." (People v. Fritz (2007) 153 Cal.App.4th 949, 957.) "Deception, falsehood, and fabrication as to the facts of the case are treated as tending to show consciousness of guilt, and are admissible on the same theory as flight and concealment of the person when charged with crime." (People v. Cole (1903) 141 Cal. 88, 90.) "[A]ny false or misleading statements [the defendant] may make to the arresting officers or others with relation to material facts, for the purpose of misleading, or warding off suspicion . . . is receivable in evidence as indicating a consciousness of guilt." (People v. Turner (1948) 86 Cal.App.2d 791, 801.)
Defendant argues there is no evidence that his statements to Jeffery were linked to the conduct charged. That is, there was no evidence connecting the tattoo artist to drug sales and no evidence of when this event took place in relation to the undercover operation. The People, meanwhile, argue that evidence of an apparent hand-to-hand drug transaction and defendant's attempt to give an innocent explanation of the conduct was related to the charged offenses of possession of methamphetamine and heroin for sale.
We also note that, to the extent that the car trunk transaction involved drugs, there was no evidence concerning the alleged narcotic involved.
We need not resolve this conflict in views. Even assuming, without deciding, that the trial court erred in giving the consciousness of guilt instruction, we determine the error was harmless beyond a reasonable doubt. (People v. Beltran (2007) 157 Cal.App.4th 235, 247 [holding that the Chapman v. California (1967) 386 U.S. 18 (17 L.Ed.2d 705) beyond-a-reasonable-doubt standard applies to challenges to instructions erroneously allowing permissive inferences].)
We disagree with defendant's assertion that the evidence supporting his convictions is "thin." Defendant sold heroin to an undercover officer. There was testimony about the transaction, text messages, and an audio recording of it. Defendant installed surveillance equipment in his father's home and monitored it from his bedroom. Expert testimony established that people involved in drug sales frequently have security cameras to monitor traffic to the home and as a safety measure against robberies. Secured in a safe in his room, officers found defendant possessed a large amount of heroin, packaging, a scale, and $1,100 in cash, largely in $20 denominations. Expert testimony established people who sell narcotics frequently use similar packaging materials, digital scales, and hold large amounts of cash, generally in similar denominations. Officers also found a much smaller quantity of methamphetamine. Despite the fact that he was unemployed, defendant had approximately $3,000 worth of heroin, $150 worth of methamphetamine, and $1,100 in cash. Defendant had also previously engaged in similar conduct.
Furthermore, the inference of guilt suggested by the instruction is a permissive one. The jury was admonished that evidence defendant made a false or misleading statement cannot prove guilt by itself. The instruction did not indicate it applied to any particular statement made by defendant. In closing argument, the prosecution did not mention defendant's explanation of the transaction, did not claim the statement was false, or argue the jury could infer consciousness of guilt from the explanation of the transaction. Defense counsel argued that there was no evidence to suggest defendant's explanation was not true and no reason to doubt the explanation.
On this record, any error in giving the instruction of consciousness of guilt was harmless beyond a reasonable doubt.
III
Sections 1041 and 1042 provide for the privilege of nondisclosure of a confidential informant's name. The rationale for the privilege is a strong public interest in encouraging people to report illegal activities. Before trial, the trial court held an in camera hearing regarding disclosure of the identity of the confidential informant. (§ 1042, subd. (d).) The trial court denied the motion to disclose, concluding the confidential informant was reliable and there was no discoverable information. Defendant asks this court to review the sealed transcript of the in camera hearing on the motion to disclose the informant's identity and determine whether the trial court properly exercised its discretion in denying that motion.
We have reviewed the record, including the sealed transcripts, and conclude the trial court reasonably determined that the informant could not have provided any evidence that might have exonerated defendant. Accordingly, we find no abuse of discretion in denying the motion to disclose the confidential informant's identity.
DISPOSITION
The judgment is affirmed.
KRAUSE, J. We concur: MAURO, Acting P. J. HOCH, J.